Page 587 - Week 02 - Thursday, 20 February 2020
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which operate as interim orders, restricting a person’s ability to dispose of, or otherwise deal with, property. These provisions ensure that property is preserved and cannot be transferred or dispersed before a court can determine whether a final unexplained wealth order should be made. These provisions are consistent with the existing provisions for restraining orders that currently operate in relation to other proceedings under the COCA Act.
A court must make an unexplained wealth restraining order if satisfied that there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired and the whole or any part of the person’s wealth was derived from serious criminal activity. The court has a discretion to make an order for hardship relief for reasonable living, business or legal expenses at the restraining order stage.
The second part of the unexplained wealth scheme provides for final orders to be made by a court. Unexplained wealth final orders are orders that make payable to the territory an amount which constitutes the difference between a person’s total wealth and the value of the person’s wealth that has been lawfully acquired. This amount is assessed by the court. The amount ordered payable is enforceable as a debt payable to the territory. If property has been restrained, this will be used to satisfy the final order, with any shortfall able to be recovered as a debt payable to the territory.
The provisions relating to hardship relief are an important part of this bill, allowing it to operate effectively, whilst also protecting the human rights of a person against whom an order is made, and those of their dependants. Important human rights measures in this bill provide that the court has a discretion to refuse to make an order or reduce the amount that is payable if it considers it in the public interest to do so. Further, at the final order stage, the court also has discretion to make an order, once the final order amount is paid to provide for living expenses of dependants.
The financial and personal circumstances of a person who is the subject of COCA proceedings can vary significantly. For this reason this bill ensures that the restraining and forfeiture provisions, including as they apply to the unexplained wealth scheme, will operate in a proportionate way and will not result in unreasonable financial hardship on a person and their dependants.
As a human rights jurisdiction it is important that this bill includes provisions which address the potential for undue hardship to a defendant and their dependants at the restraint stage, and, to a more limited extent, dependants at the final order stage. The bill amends the existing confiscation regime in a way that ensures that it does not operate in an unduly harsh manner.
Broadly, the bill engages and places limitations on section 11 of the Human Rights Act, which relates to the protection of family and children, and to section 12, which relates to the right to privacy and reputation.
It is important that these laws target those involved in and profiting from serious criminal offending without unduly affecting dependants, such as children, who are not involved in the criminal activity. Extensive consultation has taken place around the issue of protecting dependants and allowing for reasonable expenses.
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